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Attorney General Inviting Police Abuse of Power

Virginia Attorney General Bob McDonnell gets it backward by blaming the Virginia Supreme Court for enforcing the ban on custodial arrest of persons suspected of committing misdemeanor crimes in Virginia ("Police Arrest Powers Under Fire," Street Talk, Feb. 7).

This ban on custodial arrest for misdemeanors comes from English common law, later codified into positive statute by the Virginia General Assembly long ago and is certainly not "an absurd situation" invented by the Virginia Supreme Court as McDonnell charges. The courts of South Carolina and New Mexico have also recently enforced their states' misdemeanor arrest bans.

And tellingly, the Virginia House of Delegates has lopsidedly rejected efforts to repeal this statute as recently as 2002 and 2004. But while it is true that the House of Delegates voted to overturn the ban via HB 2943, patroned by Delegate Jackson Miller (R-Prince William County), now the Virginia Senate will get to look at this bill anew.

For starters, the Senate should recognize that the misdemeanor arrest ban does have four large exceptions for the police to arrest people they accuse of misdemeanors anyway (i.e., the officer may arrest anyone who appears intoxicated, unwilling to sign the summons or show up in court, unwilling to cease the alleged unlawful conduct, or likely to harm himself or others).

Secondly, the Senate should take notice that HB 2943 would allow the police 100 percent discretion to arrest and strip-search anyone they accuse of one of thousands of sometimes vague state and local misdemeanors, including such heinous crimes as forgetting your driver's license, losing records of Irish potato handling or dancing at a restaurant in Norfolk.

Finally, the Senate should realize the motivation to overturn the current statute has nothing to do with prosecuting misdemeanor crimes — the goal is to short-circuit the Fourth Amendment's ban on warrantless searches by giving the police 100 percent discretion to custodially arrest anyone so that they can be strip-searched without a warrant. This is exactly the sort of police state tactics carried out by the British Crown that led to the American revolution.

Mike Stollenwerk, Chairman

Fairfax County Privacy Council


In your article, the argument is made that police need to be able to arrest someone for minor offenses so police can search for evidence of more serious crimes. The Supreme Court was blamed for messing up the law on arrests for misdemeanors.

The Supreme Court did nothing of the sort! It only stated the law in Virginia as it has been on the books for a long time.

Police have always been able to make an arrest for a misdemeanor (and still can) under specific circumstances: where the suspect isn't going to stop his illegal actions, if the suspect is likely not to show up in court, if he is endangering others or is publicly intoxicated. That's reasonable and shouldn't be changed.

To broaden those powers, however, is a step in the wrong direction.

Misdemeanors are, by definition, minor crimes and should be treated as such. To give a police officer total discretion to arrest someone instead of giving them a summons for a misdemeanor is to invite abuse in terms of unnecessary strip-searches and "fishing expeditions" in vehicles and homes looking for an excuse to up the charges on an individual.

Will most police officers abuse that discretion? Absolutely not. But the rogue officer who wants to make your day miserable can do so quite easily with the proposed extended powers. And remember, just because a person is charged with a misdemeanor doesn't mean he is actually guilty.

Will some criminals get away with crimes because the police don't have their powers extended for misdemeanor arrests? Sure. But just think of how many criminals could get caught if police could search any house, without a warrant, at any hour of the day or night. Are you willing to be subject to such a search just to catch a few more criminals somewhere in the state?

When we give the police more power, it is always at the expense of our freedoms and we must not do so without a powerful and compelling reason.

Another step in the direction of a police state? No, thanks.

Philip Van Cleave

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